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  • Print publication year: 2014
  • Online publication date: August 2019

8 - The constitutional dimension

from Part 2 - Judicial Review

Summary

Introduction

The Australian Constitution came into existence in 1901 in fulfilment of what Sir Henry Parkes had described in his Tenterfield Oration in 1889 as the aspiration to create a ‘great national government for all Australia’ under which ‘great national questions’ ‘would be disposed of by a fully authorised constitutional authority’. Writing soon after, Professor Harrison Moore noted the ‘extraordinary and peculiar’ nature of the jurisdiction of courts to ‘control’ administrative decision-making by ‘public officers’ and went on to consider ‘how far the exercise of judicial control is affected by the existence of a dual system of government over the same persons and territory’.

Given that it is in the nature of a constitution to establish a system of governance, it is hardly surprising that the Australian Constitution should have implications for the development of not only the institutional design of the repositories of administrative power but also that branch of Australian administrative law which is concerned with the judicial review of administrative action. What might be thought surprising in hindsight is that, but for the early insight of Professor Harrison Moore and occasional glimpses in reasons for judgment of which his one-time student Sir Owen Dixon was an author or co-author, those constitutional implications went largely unheralded for almost a century, coming to prominence only in the two decades between 1990 and 2010.